Dewar against Purday
| Jurisdiction | England & Wales |
| Judgment Date | 04 May 1835 |
| Date | 04 May 1835 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 376
IN THE COURT KING'S BENCH.
S. C. 4 N. & M. 633; 1 H. & W. 27; 4 L. J. K. B. 164.
dewar against purday. Monday, May 4th, 1835. At the close of plaintiff's ease leave was reserved to defendant to move to enter a nonsuit. Defendant offered evidence, and the jury retired, and were unable to agree upon their verdict. The Judge, being pressed to discharge them, no counsel on either side being present, directed a nonsuit on the point which had been reserved. On motion by plaintiff for a new trial: Held, that the nonsuit was irregular, and that defendant, in shewing cause, could not argue the point reserved at the close of plaintiff's case. [S. C. 4 N. & M. 633; 1 H. & W. 227; 4 L. J. K. B. 164.] Case for infringing the plaintiff's copyright in the music of a song. At the trial before Lord Denman C.J., at the sittings in Middlesex after Trinity term, 1834, the plaintiff endeavoured to prove that he was the original composer; and, upon this part of the case being closed, Sir J. Scarlett, for the defendant, applied for a nonsuit, contending that there was no evidence to go to the jury. The Lord Chief Justice inclined to this opinion ; but he refused to nonsuit, taking, however, a note of the objection. Evidence was then offered for the defendant, to shew that the composition was not original. The Lord Chief Justice left the question of originality to the jury, who retired about four o'clock in the afternoon, and remained shut up all night. At the sitting of the Court the next morning they stated to the Lord Chief Justice that they were not agreed, and requested to be discharged. His Lordship sent them back; but they afterwards informed him again, by message, that they were not likely to agree. The Lord Chief Justice then desired them to attend in Court, and directed enquiry to be made for [167] the plaintiff's counsel; but, they not appearing, his Lordship, acting upon the opinion he had entertained on the preceding day, directed a nonsuit, no counsel on either side being present. Sir John Campbell, Attorney-General, in the ensuing term, moved for a rule to shew cause why the nonsuit should not be set aside and a new trial had. He contended that, under these circumstances, the Lord Chief Justice had no authority to direct a nonsuit. The only regular course would have been to call upon the parties to consent that the jury should be discharged. Where a plaintiff is nonsuited, the supposition is that, the...
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